UNITED STATES v. HAZZARD

UNITED STATES OF AMERICA, PLAINTIFF,v.KEVIN SIDNEY HAZZARD, BYRON RANDOLPH AND KEVIN STEPHENS, DEFENDANTS.

The opinion of the court was delivered by: William T. Hart, District Judge.

MEMORANDUM OPINION AND ORDER

Defendant Kevin Sidney Hazzard has moved to revoke or amend
an order entered by a United States magistrate on October 23,
1984 ordering his pretrial preventive detention pursuant to
the Bail Reform Act of 1984 ("the Act"), 18 U.S.C. § 3141, et
seq. Section 3145(b) of the Act provides that if a person is
ordered detained by a magistrate he may file with the court
having original jurisdiction of the offense a motion for
revocation or amendment of the
order. The Act requires that the motion shall be determined
promptly.*fn1

Hazzard contends that the detention order should be reversed
and reasonable bail set for one or more of the following
reasons:

(a) The detention order was entered pursuant to
the provisions of a statute which, both on
its face and as applied to Hazzard, deprives
him of constitutional rights to bail, to the
presumption of innocence, to due process of
law, and to equal protection of the laws.

(b) The detention order was entered without
providing Hazzard with the discovery
necessary to a meaningful exercise of his
right to cross-examine, to confront
witnesses, and to present evidence.

(c) The hearing was inadequate because of the
government's reliance on hearsay evidence and
because of the limits placed on
cross-examination.

(d) To apply the Act in this case would violate
the Ex Post Facto clause of the Constitution
because the offense charged allegedly
occurred on October 6, 1984 and the Act did
not become law as part of the Comprehensive
Crime Control Act of 1984 until October 12,
1984.

I. Applicable Statutory Provisions

On October 12, 1984 the Bail Reform Act became law as
Chapter II of the Comprehensive Crime Control Act of 1984.
Because of new interrelated provisions pertaining to detention
hearings, it is appropriate to set forth at the outset the
parts of the Act which govern this proceeding:

"§ 3141. Release and detention authority generally

"(a) PENDING TRIAL. — A judicial officer who is authorized
to order the arrest of a person pursuant to section 3041 of
this title shall order that an arrested person who is brought
before him be released or detained, pending judicial
proceedings, pursuant to the provisions of this chapter.

"§ 3142. Release or detention of a defendant pending trial

"(a) IN GENERAL. — Upon the appearance before a judicial
officer of a person charged with an offense, the judicial
officer shall issue an order that, pending trial, the person be
—

(4) detained pursuant to the provisions of
subsection (e).

"(e) DETENTION. — If, after a hearing pursuant to the
provisions of subsection (f), the judicial officer finds that
no condition or combination of conditions will reasonably
assure the appearance of the person as required and the safety
of any other person and the community, he shall order the
detention of the person prior to trial. . . . Subject to
rebuttal by the person, it shall be presumed that no condition
or combination of conditions will reasonably assure the
appearance of the person as required and the safety of the
community if the judicial officer finds that there is probable
cause to believe that the person committed . . . an offense
under section 924(c) of title 18 of the United States Code
[possession of a firearm during the commission of a felony].

"(f) DETENTION HEARING. — The judicial officer shall hold a
hearing to determine whether any condition or combination of
conditions set forth in subsection (c) will reasonably assure
the appearance of the person as required and the safety of any
other person and the community in a case —

(1) upon motion of the attorney for the
Government, that involves —

(A) a crime of violence;

"The hearing shall be held immediately upon the person's first
appearance before the judicial officer unless that person, or
the attorney for the Government seeks a continuance. Except
for good cause, a continuance on motion of the person may not
exceed five days, and a continuance on motion of the attorney
for the Government may not exceed three days. . . . At the
hearing, the person has the right to be represented by
counsel, and, if he is financially unable to obtain adequate
representation, to have counsel appointed for him. The person
shall be afforded an opportunity to testify, to present
witnesses on his own behalf, to cross-examine witnesses who
appear at the hearing, and to present information by proffer
or otherwise. The rules concerning admissibility of evidence
in criminal trials do not apply to the presentation and
consideration of information at the hearing. The facts the
judicial officer uses to support a finding pursuant to
subsection (e) that no condition or combination of conditions
will reasonably assure the safety of any other person and the
community shall be supported by clear and convincing evidence.
The person may be detained pending completion of the hearing.

"(g) FACTORS TO BE CONSIDERED. — The judicial officer shall,
in determining whether there are conditions of release that
will reasonably assure the appearance of the person as required
and the safety of any other person and the community, take into
account the available information concerning —

(1) the nature and circumstances of the offense
charged, including whether the offense is a crime
of violence or involves a narcotic drug;

(2) the weight of the evidence against the
person;

(3) the history and characteristics of the
person, including —

(A) his character, physical and mental
condition, family ties, employment, financial
resources, length of residence in the
community, community ties, past conduct,
history relating to drug or alcohol abuse,
criminal history, and record concerning
appearance at court proceedings; and

(B) whether, at the time of the current
offense or arrest, he was on probation, on
parole, or on other release pending trial,
sentencing, appeal, or completion of sentence
for an offense under Federal, State, or local
law; and

(4) the nature and seriousness of the danger to
any person or the community that would be posed
by the person's release.

"(i) CONTENTS OF DETENTION ORDER. — In a detention order
issued pursuant to the provisions of subsection (e), the
judicial officer shall —

(1) include written findings of fact and a
written statement of the reasons for the
detention;

(2) direct that the person be committed to the
custody of the Attorney General for confinement
in a corrections facility separate, to the extent
practicable, from persons awaiting or serving
sentences or being held in custody pending
appeal;

(3) direct that the person be afforded
reasonable opportunity for private consultation
with his counsel; and

(4) direct that, on order of a court of the
United States or on request of any attorney for
the Government, the person in charge of the
corrections facility in which the person is
confined deliver the person to a United States
marshal for the purpose of an appearance in
connection with a court proceeding.

"The judicial officer may, by subsequent order, permit the
temporary release of the person, in the custody of a United
States marshal or another appropriate person, to the extent
that the judicial officer determines such release to be
necessary for ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.